New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

KARY RAY FRAZIER v. BRIDGESTONE/FIRESTONE, INC., et al.
Court:TSC - Workers Comp Panel
Attorneys:
Mary B. Little and B. Timothy Pirtle, McMinnville, Tennessee, for the
appellants, Bridgestone/Firestone and Insurance Company of the State
of Pennsylvania.
William Joseph Butler and Frank D. Farrar, Lafayette, Tennessee, for
the appellee, Kary Ray Frazier.
Judge: LOSER
First Paragraph:
This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann.
S 50-6-225(e)(3) for hearing and reporting of findings of fact and
conclusions of law. In this case, the employer and its insurer
contend (1) the trial court erred by referring the case to a special
master for trial of all issues raised by the pleadings, (2) the
evidence preponderates against the special master's finding, adopted
by the trial court, that the injured employee has a permanent medical
impairment of 13 percent to the body as a whole, and (3) the evidence
preponderates against the trial court's award of permanent partial
disability benefits based on 32.5 percent to the body as a whole. As
discussed below, the panel has concluded the award of permanent
partial disability benefits should be reduced to one based on 20
percent to the body as a whole.
http://www.tba.org/tba_files/TSC_WCP/frazierkaryray.wpdSTACY HARRIS v. THOMAS HALL
Court:TCA
Attorneys:
Stacy Harris, Pro Se, Nashville, Tennessee.
Roger T. May, Alan D. Johnson, Nashville, Tennessee, for the appellee,
Thomas Hall.
Judge: COTTRELL
First Paragraph:
This case was transferred to a judge in another county for "binding
mediation," and the mediating judge entered an order dismissing the
lawsuit and enjoining plaintiff from certain actions, including
further litigation. The original trial court later denied the
plaintiff's Tenn. R. Civ. P. 60.02 motion for relief from orders, and
the plaintiff appealed. We find the trial court had no authority to
order the case to any alternative dispute resolution procedure other
than one established in Tenn. R. Sup. Ct. 31, that the mediating judge
had no authority to dispose of the case and, consequently, all orders
entered by that judge are void. We reverse the trial court's denial
of Rule 60.02 relief, vacate orders entered in the court of the
mediating judge, and remand for further proceedings.
http://www.tba.org/tba_files/TCA/harriss.wpd
JACKSON-MADISON COUNTY GENERAL HOSPITAL DISTRICT v. TENNESSEE HEALTH
FACILITIES COMMISSION, et al.
Court:TCA
Attorneys:
William M. Barrick and William R. Willis, Jr., Nashville, Tennessee,
for the appellant, Jackson- Madison County General Hospital District.
J. Richard Lodge, Jr., Robert E. Cooper, and W. Brantley Phillips,
Jr., Nashville, Tennessee, for the appellee, Methodist
Healthcare-Jackson Hospital.
Paul G. Summers, Attorney General and Reporter, and Michelle Hohnke
Joss, Assistant Attorney General, for the appellee, Tennessee Health
Facilities Commission.
Judge: KOCH
First Paragraph:
This appeal involves a dispute between two hospitals regarding one
hospital's desire to expand its intensive care and open-heart surgery
services. After Methodist Healthcare-Jackson Hospital applied to the
Tennessee Health Facilities Commission for a certificate of need,
Jackson-Madison County General Hospital District objected on the
ground that the proposed services would unnecessarily duplicate
services it was already providing. Even though the Commission denied
the application, the Commission's staff issued the certificate of need
after the Attorney General and Reporter opined that the Commission's
vote on reconsideration was inconsistent with the Commission's
enabling statute. Rather than pursuing a contested case hearing before
the Commission, Jackson-Madison County filed a petition for common-law
writ of certiorari in the Chancery Court for Davidson County asserting
that the Commission's vote to deny the certificate of need was proper
and that one Commission member who voted to approve the certificate
should have been disqualified because of a financial conflict of
interest. The trial court granted the writ of certiorari but,
following a hearing, dismissed the writ because Jackson-Madison County
had not exhausted its administrative remedies. Jackson-Madison County
appealed to this court. While this appeal was pending, Jackson-
Madison County requested and received a contested case hearing before
an administrative law judge sitting in place of the Commission. After
the administrative law judge determined that the Commission's vote to
deny Methodist Healthcare's application for a certificate of need was
proper and that one of the Commission members who voted to grant the
certificate of need should have been disqualified, Jackson-Madison
County moved to dismiss its appeal. Methodist Healthcare opposed
dismissing the appeal. We have determined that the trial court
properly dismissed Jackson-Madison County's petition for writ of
certiorari and that this appeal should be dismissed.
http://www.tba.org/tba_files/TCA/jacksonmadison.wpd
JOY MCVEY PORTER v. MONEY TREE FINANCE CORPORATION II, LLC D/B/A CASH
EXPRESS, II
Court:TCA
Attorneys:
Michael A. Eastridge, Johnson City, Tennessee, for the appellant,
Money Tree Finance Corporation II, LLC, d/b/a, Cash Express, II.
William L. Francisco and Eric D. Miller, Johnson City, Tennessee, for
the appellee, Joy McVey Porter.
Judge: SUSANO
First Paragraph:
The plaintiff, Joy McVey Porter, entered into a loan agreement -
referred to as a title pledge agreement - with the defendant, Money
Tree Finance Corporation II, LLC d/b/a Cash Express, II ("Money
Tree"). The agreement contains an arbitration provision wherein the
parties agree to arbitrate all disputes "arising out of" the
agreement. Pursuant to the agreement, Money Tree loaned Porter $500
in exchange for the title to her automobile. When Porter defaulted,
Money Tree sold her vehicle and attempted to collect the loan
deficiency remaining after the sale. Money Tree's efforts prompted
Porter to file this suit alleging that Money Tree's collection efforts
violated the Tennessee Consumer Protection Act, T.C.A. S 47-18-101, et
seq. Porter also alleges that Money Tree violated the Federal Truth
in Lending Act, 15 U.S.C. S 1601, et seq., by failing to provide an
accurate statement of all financing charges in the body of the
agreement. Money Tree moved the court to require arbitration. The
trial court held that Porter was not required to submit her claims to
arbitration because, according to the lower court, those claims do not
"aris[e] out of" the agreement. Money Tree appeals pursuant to T.C.A.
S 29-5-319(a)(1). We reverse.
http://www.tba.org/tba_files/TCA/porterjm.wpd
THE TERMINIX INTERNATIONAL COMPANY, L.P., ET AL. V. THE TENNESSEE
DEPARTMENT OF LABOR, ET AL.
Court:TCA
Attorneys:
Alan G. Crone and James Julius Webb, Jr., Memphis, Tennessee; and
Lawrence S. Ebner, Washington, D.C., for the appellants, Terminix
a/k/a The Terminix International Company and TruGreen, Inc., L.P.
Paul G. Summers, Attorney General and Reporter; and E. Blaine Sprouse,
Assistant Attorney General, for the appellees, Tennessee Department of
Labor and Tennessee Occupational Safety and Health Review Commission.
Judge: CLEMENT
First Paragraph:
This matter is before the Court upon a petition seeking judicial
review of our administrative order. The Petition was initiated in the
Chancery Court of Davidson County, Tennessee, wherein the appellants
challenged the jurisdiction of the Tennessee Department of Labor,
Division of Occupational Safety and Health ("TOSHA") to conduct safety
inspections concerning pesticide applicators (i.e., persons who apply
pesticides) and to enforce such regulations. The Chancery Court ruled
that the Tennessee Occupational Safety and Health Review Commission
(TOSHA) has subject matter jurisdiction to conduct inspections and
issue citations concerning the safety of pesticide applicators in the
work place. We affirm.
http://www.tba.org/tba_files/TCA/terminix.wpd
TRINITY INDUSTRIES, INC. v. MCKINNON BRIDGE COMPANY, INC., et al.
Court:TCA
Attorneys:
Don L. Smith, Donald N. Capparella, John W. Heacock, and Kenneth S.
Schrupp, Nashville, Tennessee, for the appellant, McKinnon Bridge
Company, Inc.
Kenneth S. Schrupp, Nashville, Tennessee, for the appellant, Safeco
Insurance Companies.
David L. Johnson, Hugh C. Howser, Jr. and Mary Ellen Morris,
Nashville, Tennessee, for the appellee, Trinity Industries, Inc.
Mary G. Moody, Nashville, Tennessee, for the defendants/appellees,
Bruce J. Saltsman, Sr. and Tennessee Department of Transportation, and
defendant, State of Tennessee.
David Key Taylor, Nashville, Tennessee, for the defendant/appellee, E.
L. Conwell & Company.
Stephen A. Cobb, Nashville, Tennessee, for the defendant, Tensor
Company.
John Wingo and M. Clark Spoden, Nashville, Tennessee, and Vincent G.
Torpy, Jr., Melbourne, Florida, for the defendant/appellee, Tensor
Engineering Company.
Judge: CANTRELL
First Paragraph:
An uncompleted highway bridge over the Tennessee River collapsed,
triggering a lengthy and convoluted course of litigation between the
parties involved in its construction. Litigation began when the
company that fabricated the bridge's structural steel components sued
the general contractor for non-payment on the contract. The general
contractor filed a counter-claim which alleged that the fabricator had
breached the contract by producing defective steel components that
caused the collapse. The contractor named some of its other
subcontractors as third party defendants, claiming that they also bore
some responsibility for the collapse of the bridge. In a series of
orders, the trial court dismissed the counterclaim and third party
claims, and declared that its judgments were final for purposes of
Tenn. R. Civ. P. Rule 54.02. After this court heard oral argument on
the first of the Rule 54.02 appeals, but before it could issue an
opinion, the trial court conducted a hearing on the merits of the
steel fabricator's claim, and rendered a judgment in its favor. We
affirm the judgment for the price of the steel and the judgment for
the fabricator on the general contractor's counterclaim. We reverse
the judgment dismissing the third party claims.
http://www.tba.org/tba_files/TCA/trinityindustries.wpdSTATE OF TENNESSEE v. DEAN BYARD
Court:TCCA
Attorneys:
Sam E. Wallace, Jr., Nashville, Tennessee, for the appellant, Dean
Byard.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Victor S. (Torry) Johnson III, District
Attorney General; and Lisa Angela Naylor, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
Defendant appeals from a bench trial where he was found guilty of one
count of assault and one count of aggravated assault. Sufficient
evidence exists to support the conviction of aggravated assault. The
ineffective assistance of counsel claim is wholly unsubstantiated. We
affirm the judgments from the trial court.
http://www.tba.org/tba_files/TCCA/byardd.wpd
STATE OF TENNESSEE v. DEADRICK M. PIGG
Court:TCCA
Attorneys:
Larry B. Felts, Nashville, Tennessee, for the appellant, Deadrick M.
Pigg.
Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Grady Moore, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Deadrick Pigg, was convicted in the Criminal Court of
Davidson County of the sale of less than .5 grams of cocaine. After a
sentencing hearing, the Defendant was sentenced to serve eight years
in the Department of Correction. In his appeal as of right pursuant
to Rule 3(b) of the Tennessee Rules of Appellate Procedure, the
Defendant argues that (1) the evidence presented at trial was
insufficient to support the jury's guilty verdict because the verdict
was based solely on uncorroborated accomplice testimony and (2) the
trial court erred in allowing the State to impeach the Defendant with
evidence of past convictions. After a thorough review of the record,
we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/piggdm.wpd
STATE OF TENNESSEE v. DANIEL THOMASON
WITH ORDER
Court:TCCA
Attorneys:
Kathryn S. Evans (at trial), Assistant Public Defender; Jeffrey A.
DeVasher, (on appeal), Assistant Public Defender, Nashville,
Tennessee, for the Appellant, Daniel Thomason.
Paul G. Summers, Attorney General & Reporter; Jennifer L. Smith,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; Derrick Scretchen, Assistant District Attorney General, for
the Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
Daniel Thomason appeals from the aggravated robbery conviction he
received at a jury trial in the Davidson County Criminal Court.
Thomason is serving an eight-year sentence in the Department of
Correction for his crime. In this appeal, he challenges the
sufficiency of the convicting evidence that he accomplished the
robbery "by display of any article used or fashioned to lead the
victim to reasonably believe it to be a deadly weapon." Because the
record before us is does not contain all of the relevant evidence
presented at trial, we are precluded from reviewing the sufficiency of
the evidence and therefore affirm.
http://www.tba.org/tba_files/TCCA/thomasond_opn.wpd
ORDER
http://www.tba.org/tba_files/TCCA/thomasond_ord.wpd

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